New Paper Says It's Time To Reasonably Decrease Copyright Term And Rethink Putting Copyright In Treaties

from the good-stuff dept

A couple years ago, a Congressional staffer named Derek Khanna wrote a fantastic policy brief on copyright, arguing for a variety of sensible reforms, including bringing copyright term downward to a much more reasonable level. You know what happened next. Hollywood went ballistic and called on its favorite politicians, who attacked the report and Khanna, leading to the report being yanked -- despite having gone through a full review process -- and Khanna not being retained in his job.

Since then, Khanna has been working on a number of policy and advocacy campaigns and, working as an R Street Associate Fellow, he's put together a fantastic paper that delves much deeper into the copyright term issue and argues convincingly for greatly reducing copyright term length and also revisiting whether or not copyright should even be included in international treaties. The full paper is well worth reading, detailing just how distorted copyright has become from its original purpose.

The paper does a great job talking about how a return to more original copyright principles makes sense. Furthermore, it notes that there is no credible economic evidence that longer copyright terms are good for the economy or the public, and in fact, nearly all of the actual evidence says quite the opposite. It discusses the increasing clout and power of the Hollywood lobbying industry which has made copyright term extension a regular feature, based on FUD and fears about how terrible the world would be if there were a thriving public domain. And, of course, on the flip side, he details the many, many problems created by copyright that is way too expansive, including orphan works, culture disappearing and basic censorship.

The disparity between the founders’ copyright of 14 years
and modern copyright terms that last longer than anyone
could ever be alive, is particularly glaring to modern audiences. This is because there has been more research on the
cost of these ridiculously long terms, but also because today
everyone is a content creator in a way that average people
were not in the early 20th century. Justifying why our personal e-mails, Facebook posts and tweets should be protected
under copyright for our lifetimes plus 70 years doesn’t seem
to meaningfully fulfill the constitutional mandate of promoting the progress of the sciences.

Further, social norms on those forms of creation differ
extremely far from what the law is. Of course, this does not
justify large-scale piracy, but social norms are such today
that forwarding an e-mail from a friend is not perceived as
a potential legal problem. However, under many readings
of the copyright statutes, your e-mails are copyrighted and
forwarding an e-mail without permission, especially if the
e-mail says not to forward it, could be copyright infringement, making one liable for a $150,000 fine.

The paper also takes on the current negotiations on the Trans Pacific Partnership (TPP) agreement, in which some have looked to extend copyright even further, while others (including the US) appear to want to lock-in the current life+70 as a minimum, even as many (including the head of the Copyright Office) have suggested that we may want to think about cutting back copyright term length. The report shows how things like the TPP can interfere with legitimate copyright reform:

If the White House signs a treaty that makes
such reforms impossible, that would have significant deleterious effects on the reform effort. By removing any prospect
of reform from the table, it would be a nearly unprecedented policy coup for the content lobby in their attempt to effectively repeal the Constitution’s Copyright Clause.

The TPP, as leaked, is a clear illustration of policy laundering.
Special interests can’t defend life+70 copyright terms in the
United States, so instead they use an international treaty-making process to tie Congress’s hand. The content lobby
has done this effectively with numerous other treaties; this
has been their modus operandi for decades. But unlike other
treaties involving copyright and patents, this treaty process
has been subject to unprecedented secrecy: even members of
Congress initially were unable to access the treaty

Of course, this doesn't even get into the fact that part of the reason copyright terms are so long is an international agreement from over 100 years ago: the Berne Convention Treaty, which is a massive impediment to necessary copyright reform. And yet, rather than fix that, it appears that the US government is seeking to extend it even further through other agreements.

Reader Comments

How to fix Copyright plenty easily

If the problem is the Berne Convention, (and it is, I agree,) then why not simply withdraw from the treaty? That's what nations do when they find the provisions of a treaty to no longer be in their interest.

Re: How to fix Copyright plenty easily

Because politicians are always being given lots of money to extend copyright, and nobody's giving them money to reform copyright. And until the internet came along, it really wasn't a problem - at least not for anyone outside of a law office.

Re: How to fix Copyright plenty easily

It's not necessary to withdraw from the treaty. Just apply incentives to release works to the public domain. Tax the monopoly right, minimally at first, but rising rapidly so as to make it economically unfeasible to sustain the monopoly after X years.

I'd set X at 20, but I'd be satisfied if X was any length of time that allowed a work produced in my youth to enter the public domain before I die.

Re: Re: How to fix Copyright plenty easily

I don't like the idea of an increasing tax. Implementing such a thing means that the most successful works will have a longer copyright term than less successful ones. The problem with that is that the most successful works don't need a longer term because they've already made a lot of money. The less successful works are the ones that have a greater need for longer copyright terms. The incentive structure makes no sense. It's more sensible for the successful works to have shorter copyright terms because a) they're more likely to have already made a profit and b) we presumably want those who make popular work to be incentivized to create new work rather than rest on their laurels.

Re: Re: Re: How to fix Copyright plenty easily

All of the fees are tied to the revenues of the copyright in question. Less successful works that make lower revenues would have lower fees, albeit ones that still grow progressively more expensive with each renewal.

Re: Re: Re: Re: How to fix Copyright plenty easily

Hollywood and the music industry have ways of making sure that they can show break-even or terrible loss no matter how well something does. Your implementation would mean that only the small, honest people ever had to pay anything notable.

Re: How to fix Copyright plenty easily

Take a re-read through Golan. Justice Ginsburg relates some of the history, and notes:

Berne, however, did not provide a potent enforcement mechanism. The Convention contemplates dispute resolution before the International Court of Justice. But it specifies no sanctions for noncompliance and allows parties, at any time, to declare themselves "not ... bound" by the Convention's dispute resolution provision. . . .

The landscape changed in 1994. The Uruguay round of multilateral trade negotiations produced the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The United States joined both. TRIPS mandates, on pain of WTO enforcement, implementation of Berne's first 21 articles. The WTO gave teeth to the Convention's requirements: Noncompliance with a WTO ruling could subject member countries to tariffs or cross-sector retaliation. . . . .

Re: Re: Re: Re: How to fix Copyright plenty easily

Think of it like surgery.

Yes it's bloody, yes it's messy, and yes, at first it might seem like you're only making things worse, dicing up the poor sap on the table, but only once the patient has gone through with it can they start to heal, so as unpleasant as it may be short term, long term it's for the better.

Re: Re: Re: Re: Re: How to fix Copyright plenty easily

I think a good point is that a healthy democracy requires a lot of hard work. The work is not easy, well defined, work that we can just plug into an equation and see results. People think of a democracy where you go out and vote and maybe, if you are a good citizen, you participate in a few government hearings and some protests and you magically get the results you want. It's some easy, clear cut, formula that you plug in and the government acts according to the will of the people.

But, really, the goal of politicians is to give the public the perception that they are acting in the public interest and will when in reality they are only acting in their own interests. You can almost see the apparent establishment of a 'democracy' as a means of giving that appearance. In reality getting the government to behave in the public interest is a difficult, messy (not clear cut), job that requires a lot of work. Politicians and the government try to avoid public input on many subjects (while allowing input on preset subjects). Or they try to create a predefined avenue of input (like whitehouse.gov) that they can just ignore to give the appearance they are listening when they are, in fact, just ignoring you. No, we must get their attention. It takes work but we need to hound elected officials, minute by minute, about the fact that they need to pass laws in the public interest. We need to track them down, even in the mist of them trying to avoid us, and make sure we get the message across. Protest the white house. They may not be there because they are doing some backdoor deal somewhere else. Protest at Disneyland (to get to Disney) and let customers know how they have destroyed our culture by having the MPAA pass bad laws. Protest at corporate headquarters. Find the politicians and lobbyists and executives and place of business of the corporations responsible for this lack of democracy and protest where they will be. Tell their customers about their wrongdoings. Protest at the MPAA headquarters. Protest at TWC cable outlets to complain about their monopoly privileges. When politicians and judges are invited to nice hotels and yachts and whatnot for dinner be there protesting. Let them hear you. Make them hear you. We have to be persistent and enduring. We must let them know they work for us. Even after a politician has left office and gotten a nice lobbying job or whatever in exchange for bad laws we need to make their life miserable. Make them fear us. Make them work hard to avoid is. Make them have to hide from the face of the public. Make it so that they can't go to the mall without having everyone there know who they are and what they have done so they must stay hidden from the rest of society. Make their lives miserable.

Re: Re: Re: Re: Re: Re: How to fix Copyright plenty easily

A lot of the commotion will be butthurt pouring out of stunned gougers with lots of stock benefits. The corporations themselves will probably take action, you know, become better business people? Even if we took a 180 degree turn tomorrow, this will take time. The light of day can shine light on a lot of evil, and both the customers and investors (often the same people) must be listened to lest great peril.

Re: Re: Re: Re: Re: Re: How to fix Copyright plenty easily

Those people who will experience "“horrendous chaos” and “epic conniptions” will be massively outnumbered by those who will benefit from the suggested changes, namely the world's general public. Even those suffering so terribly will have the opportunity to benefit in the long run. So the point may be valid but sympathy will be in short supply.

Re: Re: Re: Re: Re: Re: How to fix Copyright plenty easily

Perhaps, but you'll excuse me if I'm a little iffy about believing that things would really be that bad.

For decades, even centuries now, the entrenched companies and powers that be have been claiming that any change, any new tech, would spell absolute doom for them, claiming that adapting would just be too hard, that the new (insert tech here) would completely destroy them.

In some cases, like automobiles were to buggies, they were right, but while they may have gone through a rough time, adapting and moving on to something else, society overall benefited from the change.

So could the drastic shortening(or, put more accurately, the returning to the original terms and limits) of copyright cause some upheavals in various companies or industries? Quite possibly, but not only do I not believe it would lead to 'horrendous chaos' (though 'epic conniptions' would probably be accurate, considering how valuable some companies consider current copyright, and how much they fight to not only keep it, but expand it), I also believe it would ultimately be better for society, allowing greater creation and the enriching of culture, so I'd say it would be a good trade-off.

Re: How to fix Copyright plenty easily

This agreement, administered through the WTO, provides penalties in the event that its provisions are violated. The Berne Convention was largely incorporated in to the TRIPs agreement, and thus if we act in contravention of the Berne Convention, we subject ourselves as a country to these penalties, which include such things as tariffs on our goods in international trade, as well as permission for other countries to infringe our intellectual property rights.

Re: we subject ourselves as a country to these penalties

Copyright Reform

Casual examination of the paper suggests that it makes too much sense to have a chance with our relentlessly avaricious Congress-creatures, who never saw a bribe ... uh, I mean campaign contribution they wanted to pass up. As Will Rogers(?) said, "We have the best Congress money can buy."

A good read

Re: A good read

If you accept that, you've already lost.

It's time to change the discussion. The copyright industry likes to say that copying is "theft." The truth is, copyright term extension is theft: the theft of public property. And not only that, it's blatantly unconstitutional: under Article I, Section 9, Clause 3 of the US constitution, Congress is expressly forbidden from passing any ex post facto (retroactive) law. This means that Disney, the RIAA and the MPAA have been using Congress to create illegal laws to steal our property since the 1970s! The public domain is our property, yours, mine, everyone's, and it has been stolen from us.

Mickey Mouse belongs to me. And to you, and to everyone. Disney has stolen him from us.

Star Wars belongs to me. And to you, and to everyone. George Lucas (and now Disney!) has stolen it from us.

The fall of SOPA and ACTA, and the impending fall of the TPP, shows us that the public is starting to wake up and realize that the current copyright schemes are not in our interests. It may seem like a small issue right now, but most really big ideas do, right up until a little while after they hit the tipping point and explode into something huge. We're getting close to that point now.

Put the word out. Copyright extension is theft, and it's unconstitutional. We want our public domain back, and we will have it. The job of any Congresscritter who opposes our agenda is not secure.

Re: Re: A good read

Actually, Star Wars still belongs to LucasFilm (which is now owned by Disney), even under the old terms of 28 & 28...However, under the old rules, anything published/produced before 1956 would now be PD...

Re: Re: Re: A good read

this will be a definite fail, then! the entertainment industries will be going fucking nuts at just the thought! do something to actually encourage innovation and give customers what they have been asking for for years! aint gonna happen until someone in a position of political power grows a pair of necessaries and tells the industries to get the fuck out! imagine what those same industry heads would say if there was other industries that wanted the protection the entertainment industries have already and had them for 2x lifetimes! then imagine that there were no 2nd hand markets because everything had to get permission to be passed on and money returned to the inventor or the discoverer every time a change of hands was wanted. they would go absolutely ballistic!!

Mr. Khanna's supposed "great reduction" in copyright term is at best questionable in it's generosity. 46 years? Blech. As an entry point for negotiations it sucks balls. He just sounds like another corporate shill.

The original 14 year duration was set in place as a reasonable amount of time for the content creator to earn a reasonable return on a single work. It was based on a distribution model that involved horsedrawn coaches, barges and sailing ships delivering mostly handmade products to widely dispersed customers. Distribution methods are hundreds of times more efficient, manufacturing processes are hundreds of times faster and potential customers are literally stacked atop each other nowadays.

And that's just requirements for physical goods. Digital goods are even easier to reproduce and distribute, with consumers no farther away than the nearest computer monitor or smartphone.

Hollywood expects to make the bulk of it's profits on a movie in the first year. Music sales? The same. Print? Software? Everything after the first year is gravy. When did mandated gravysuck orgies become an expected part of dress-down Fridays? And why do we cater to these entitled pigs?

Two year initial copyright for corporations would be more than fair. Allow a three year extension exclusively for individuals creating content- artists, musicians, writers, etc. And since the big companies would make the lion's share the first two years, advertising and distribution via their website on behalf of the artist for the final three should be required, with 100% payment going to said artist. If a corporation isn't involved, the whole five years should go to the individual. End of story.

To fulfill the stated purpose of encouraging creative works while at the same time benefitting society at large modern copyright should last much LESS than the original 14 years, not more. Right? It's supposed to be for the good of the people? That's what they always say, isn't it? Oinkoinkslopslurp? Anyone?

Re:

A 2-5 year term of copyright is a little too small. After all, Some works (like the original Star Trek episodes) were not well received until well after they were produced. I think the original 14yr copyright term + one-time 14 yr extension is more in line with the needs of all parties involved (provided the extension cost is relatively expensive).

Re: Re:

Re: Re:

A lengthy amount of time until something is well received isn't something that needs to be considered. If it's not well received at it's release then it's a commercial failure, due to the product straight up sucking, poor marketing or what have you. Stillborn ideas shouldn't make money. The ability to make money off the reanimated corpses of ideas that sucked long after the fact is not something that needs to be protected. After five years they become public domain and if they then become popular/successful, great. The only thing that changes is that nobody makes money. If you couldn't make money at it in the intervening five years you didn't deserve to.

Copyright is not and should not be a system designed to guarantee financial success, only one designed to benefit the creator (for a limited time) in the event of it's success. Commercial success requires three things: a product people want, an ability to deliver the product in a timely manner, and an attractive price point. RIGHT. NOW. A law protecting the right to attempt breathing new life into a failed project every few years, ad infinitum, is counterproductive and only encourages laziness. It's government sanctioned INSURANCE, paid for by a society that has no monetary stake whatsoever in the outcome, and the currency it's paid in is freedom. At gunpoint. At the behest of modern day robber barons.

The only things encouraged by criminal laws are criminal behaviors. When they're encouraged by the State they bleed and soak into every aspect of society. Until this one is fixed there's no hope that America can pull out of it's death spiral.

Re: Re: Re:

A lengthy amount of time until something is well received isn't something that needs to be considered. If it's not well received at it's release then it's a commercial failure, due to the product straight up sucking, poor marketing or what have you. Stillborn ideas shouldn't make money.

I heftily disagree. You are assuming that culture progresses by marketing the already popular. But that's more or less a guarantee to get stuck in a local minimum. As an extreme example, the Magnum Opus of J.S.Bach, the B Minor mass written in an outdated Catholic rite, was unsuitable for performance in either Catholic or Bach's own Protestant churches nor in secular circumstances at the time it was written.

Bach was dead for longer than he had been alive before the first full performance occured. Does that mean that copyright needs to last more than 80 years after the death of an author? No. The purpose of copyright is not "somebody should make money from it exclusively at some point of time" but to encourage art and culture.

If somebody was a frontrunner early in life, profiting from it later might help him work as a frontrunner again. But once he's dead, taking his work forward depends on his disciples rather than his financial heirs. It does not make sense to tie derivative works up exclusively with people who are not actually spiritual rather than monetary successors of the original artists.

Re: Re: Re:

Copyright is not and should not be a system designed to guarantee financial success, only one designed to benefit the creator (for a limited time) in the event of it's success.

No.

Copyright is not and should not be a system designed to benefit the creator. It is (or should be), rather, a system designed to expand the public domain.

Benefitting the creator is only a method, a means, by which copyright tries to accomplish that goal. Evidence seems to indicate that it has instead been perverted to focus on that means as more important than the end, but that does not change the original design goal.

Re: Re: Re: Re:

… the public domain.

In a 1990 article by the well-known Jessica Litman, “The Public Domain”, she says that the phrase “public domain” itself did not gain widespread English-language traction in the copyright context until the end of the nineteenth century.

Footnote 60 in her article:

The term public domain gained widespread use in the late nineteenth century when the Berne Convention adopted the term domaine public from the French. In the U.S., we had already been using the phrase "public domain"' (apparently derived from the British Royal demesne) to describe lands owned by the federal government intended for sale, lease, or grant to members of the public.

Re: Harmonize Patent & Copyright Terrns

While I agree with you in principle, Ronald, I worry that if we harmonized copyright with patents, trademarks would join them. This would cause all kinds of confusion and patents could end up being extended for decades. Not a thing I like to think about.

Berne bad or not?

Berne shouldn't be made a whipping boy for problems that have other causes. Corporate greed, particularly in the entertainment business, will drive term extension not matter what scheme is used.

The good thing about Berne is that it extends copyright protection without the formality of filing, unlike traditional U.S. copyright, which once required filing and renewal for effective protection. The bad thing about Berne is also that it offers copyright protection without filing. That creates all sorts of problems, including the difficulties of contacting an author for permission to quote or republish and the near impossibility of figuring out when life plus X years is when the author's year of death becomes unfindable. Laws should be well enough written, it requires no great effort to discover what their extent is.

Claims that the U.S. should get out of the copyright treaty business and go it alone are simply crazy. Only the most successful of authors and the largest of publishers can go through all the troubles of getting copyrights in 170+ countries. Countries need to recognize in some sense the copyrights of other countries and doing that requires treaties. And the specifics of that requires more negotiations and treaties.

The key problem with copyright today isn't the length of term. That merely highlights the real problem, which is that copyright law hasn't had any significant revision since the late 1970s. None of the technological changes that have occurred since then have been incorporated into law. The result is a patchwork of court decisions. And the reason is all too obvious. Consider making changes and a host of deep-pocketed interest groups jump in, wanting to dictate the outcome.

My own sense is that we need a negotiating process that is willing to make compromises. Protect from the moment of creation, but include requirements that strongly encourage registration with publication. Offer copyright terms that are reasonable incentives to authors but don't let those terms be decided by the endless greed of the entertainment industry.

One compromise might allow copyright extensions upon payment of royalties. Let the film Gone with the Wind, for instance, stay in copyright for longer than makes sense for authors, but have a steadily escalating scale of royalties that are paid to fund foundations that preserve and restore old films or encourage literacy. Eventually those royalties would rise to the point that it'd no longer make sense to keep a book, movie or whatever in copyright. Some might object to keeping certain films in copyright for 100+ years, but that'd be better than letting Hollywood buy off Congress and lock every book not matter how obscure, for 100+ years.

Re: Berne bad or not?

"The good thing about Berne is that it extends copyright protection without the formality of filing"

You've covered why this is a bad thing, but you've never explained why it's a good thing. Why is this good?

"The key problem with copyright today isn't the length of term."

We can agree to disagree about this. The length of the term is, in my opinion, a key problem. Not the only problem, but it makes the others much worse.

"That merely highlights the real problem, which is that copyright law hasn't had any significant revision since the late 1970s."

What about the DMCA? That was a significant revision and also introduced many of the worst aspects of copyright law today.

"One compromise might allow copyright extensions upon payment of royalties. Let the film Gone with the Wind, for instance, stay in copyright for longer than makes sense for authors, but have a steadily escalating scale of royalties"

If you replace "royalties" with "fees," then I agree that this compromise would potentially mitigate a lot of the problems, especially if the rate of fee increase is a logarithmic one.

A quibble

> if the e-mail says not to forward it, could be > copyright infringement, making one liable> for a $150,000 fine

I'm all for copyright reform, but I think Khanna should know better than to say this without qualification, making this statement, more or less, FUD. The $150K fine is only for registered works, and face it, the risk that a friend of yours has applied to the Copyright Office for an official copyright registration on his email is, essentially, zero.

Re: Re: A quibble

Re: Re: Re: A quibble

OK, but he didn't point that out; he glossed over the registration requirement.

In crafting an Areopagitica, why should not the author gloss over a point his opponents are bound to raise? Especially so when his opponents must necessarily confound and vex themselves in voicing their rebuttal?

The international consensus of the Berne Convention sets itself against any formalities, such as a requirement for entrance upon the Stationers' Register.